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First a disclaimer. I am only interested in analyzing the logic of the arguments being quoted. I am not going to pass judgement on the ethics of the arguments or who is right or wrong. Specifically, I am interested in the analogy being used.

Byran Fischer’s Argument: Being Homosexual Means You Can’t Make a Good Judgment

First, let’s take the statement by Byran Fischer, issues director for the American Family Association. Bryan argues that Judge Walker should have “recused himself from a case in which his own personal sexual proclivities utterly compromised his ability to make an impartial ruling.” The implication is that Walker was biased and therefore not an appropriate judge and his ruling should be thrown out.

How good is this argument?

It seems to me that if we take it literally, there are serious problems with the logic of the argument. To prove this point, we just have to imagine Jonathan Rauch as the one making the judgment. Jonathan Rauch is a homosexual man who authored a book called “Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.” He is in favor of Gay Marriage but has shown a great deal of sensitivity to the needs of other communities, particularly religious communities. This has led, in the past, to his taking a moderating stance on gay marriage being legalized via the judiciary.

I suspect that if Jonathan Rauch was the judge, that Fischer would have few problems with it, even though he is homosexual. On the other hand those in favor of gay marriage probably would not want Jonathan Rauch making a judgment on Prop 8 since we already know (or think we know, anyhow) how he feels on the subject of judicial legalization of gay marriage.

Therefore Fischer’s argument is, if taken literally, not a solid logical argument. One’s sexual orientation by itself is not a factor in a judge making a judgment, probably even to Fischer.

Can Fischer’s Argument Be Interpreted to be Stronger?

However, the suggestion that Jonathan Rauch as Judge probably wouldn’t satisfy those in favor of gay marriage suggests that we might be able to interpret Fischer’s argument in a stronger form.

It’s important that we take any argument and try to not take it so literally that we fail to catch the underlying meaning. Therefore, taking an argument (even one we disagree with) and putting it into it’s strongest possible form is good practice.

Now I don’t personally know if Judge Walker is actually a homosexual or if this is just a rumor started because he gave a certain sort of judgment. However, we don’t actually care at the moment because we are only analyzing logical arguments being made and the argument needs to be generalized to any one judging Prop 8, not Judge Walker specifically. [1]

It seems probable that Fischer is not so worried about whether or not Judge Walker is homosexual but rather if his homosexuality predicts gay marriage activism or a specific view of marriage (such as right based vs. contract based marriage). [2]

Furthermore, we could interpret Fischer as being concerned that a homosexual is more likely to have a personal stake in a gay marriage judgment then a heterosexual judge.

Bias In Court Judgments

When we setup a court ruling – either by judge or jury – one of our top concerns in the process is if the person or persons making the judgment have a personal stake in the judgment. We do not want an alleged criminal’s mother on the jury because she has a personal stake in the outcome.

We could argue that the alleged criminal’s mother knows him the best and therefore is a strong candidate for such a role. But in reality, we know that having a personal stake in the outcome is most likely going to override her ability to really look at the issues the way we’d want a jury or judge to.

Gay marriage clearly affects different groups of people in different ways. Homosexuals are (at least in part) in favor of it presumably because it is believed it will reduce prejudice against them in all areas of life. Let’s admit that this is a legitimate concern on their part. Conservative Christians are against it presumably (at least in part) because they fear it will increase prejudice against their group. Let’s admit that this is a legitimate concern as well. Therefore there is a fair argument to be made that those two groups (Homosexuals and Conservative Christians) have a personal stake in the outcome of a court ruling on Prop 8 and therefore are more likely to be strongly biased towards a specific outcome.

So the strongest possible interpretation of Fischer’s argument is that he believes a gay Judge has a high likelihood of being strongly biased against Prop 8 not on legal grounds alone, but in favor of his own political worldview and his own stake in the outcome.

Some might argue that even if this is true, it’s more important to not make an issues out of a protected class. I will not assess this argument because it is not made in the quote I’m analyzing. But this should remind us that we are only assessing one argument, not the full situation.

Analysis of Ross’ Response

Let’s now take a look at the response from William Ross, an expert on judicial ethics and law professor at Samford University in Alabama.

Ross argues that:

…a judge’s sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times.

I have already stated that this is true. However, we should be clear then that Ross’ counter argument did not get to the heart of the strongest possible interpretation of Fischer’s statement — that of correlation between being homosexual and not being neutral on the issue as we’d like a judge to be so that they are able to consider all groups and all sides of the argument.

Still, there is merit in Ross’ response. After all, he does correctly point out that a number of different factors should not in and of themselves be a concern. He includes sexual orientation, divorce, and religious beliefs. I believe he is correct about this.

Argument By Analogy: You’d Have to Be a Eunch

However, Ross goes on to say:

Under the logic of the people challenging the judge’s fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn’t rule on it either,” Ross said.

Now this is an argument by analogy and, it seems to me, a problematic one.

To understand why this is, we need to go back to Fischer’s argument and be charitable enough to assume he’s not talking about a Judge’s sexual orientation in and of itself, but rather that he’s talking about the probability that a judge’s sexual orientation predicts a strong bias towards one group of people over another.

The fact is that a man being heterosexual does not correlate to being personally for or against gay marriage. In the US, just under half of heterosexuals or for gay marriage and just over half are against. But this is not equally true for homosexual men. In other words, if we know a person is heterosexual we know virtually nothing about their possible biases on gay marriage but if we know they are homosexual we know with a high degree of certainty what his or her stance will be.

Can we find a more comparable analogy? I’d suggest we look to Conservative Christians instead. Conservative Christians feel they are poised to receive increased prejudice against their group if gay marriage becomes wide spread legally. (Whether or not this is true is irrelevant to the current assessment. We only need to know if they believe it or not and therefore feel they have a strong stake in the outcome.) Therefore, it does not suprise us that knowing someone is a Conservative Christian highly correlates with a stance against gay marriage.

A fair question is whether or not being for or against gay marriage should matter. Wouldn’t it be highly likely either way that any given judge already is for or against gay marriage? Just how many ‘neutral’ people are there out there on the subject of gay marriage? However, at the moment, that is not our concern. We are only assessing the logic of an argument, not trying to determine what the correct answer is.

In any case, given this analysis, it should now be clear that Ross should have said the following if he wanted to use a fair analogy:

Under the logic of the people challenging the judge’s fitness to rule on a case involving gay rights because he or she was gay, one would have to compare how those in favor of gay marriage would feel if Judge Walker has just ruled in favor of Prop 8 and we just found out that he was also a Southern Baptist Minister. One could just as easily argue that a Baptist Minister judge couldn’t rule fairly on Prop 8 either.

Now that we have the ‘right’ analogy, we now understand that this question cuts both ways.

Are those who are pro-gay marriage prepared to accept a judgment from a judge that is also a Southern Baptist Minister without claiming that a Southern Baptism Minister is unfit to make such a judgment and should have recused himself? Or would they have a point that a Baptism Minister should recuse himself because he has a personal stake in the judgment?

However, we also need to ask those that are anti-gay marriage if they are prepared to ask for a re-trial in this hypothetical situation based solely on the fact that a Conservative Christian has too much at stake and therefore should have recused himself? Or do they believe religion is a protected class and it’s unethical to make in issue out of a judge’s religion, even if we know it highly correlates to a bias on this issue?

Notes

[1] …not Judge Walker specifically. Finding out that Judge Walker is not homosexual would not make the logic of the argument less valid, it would merely invalidate one of the assumptions the logic was based on – therefore nullifying the whole argument, of course.

It worries me that people think his supposed sexual orientation has an effect mostly because what does that mean for the judicial system as a whole? Right now we’re saying we trust these judges to b impartial, but if we start picking and choosing why a judge isn’t impartial, does that leave us with a single judge we can trust to give a fair decision?

There’s an additional layer to this idea that the judge’s sexual orientation played a role in his decision. The judge could also have responded by being so careful to avoid such a criticism, that he would was effectively prejudiced against the plaintiffs.

By way of illustration, a former in-law of mine was a grade school teacher in a small town, who sometimes served as acting principal when the actual principal was out sick, etc. She had children in the same grade school at the time, including her eldest son. On one of her “acting principal” days, her son acted inappropriately in class, and was sent to the principal’s office. This happened to be in the days when corporal punishment was common in schools. This woman spanked her son severely for his misbehavior. For many years afterward, she regretted her harshness, but admitted that her severity was motivated by worry that she might be seen as “going easy” on one of her own children.

Judge Walker could easily have been biased in the plaintiffs’ favor, but ruled more harshly in regard to their issues, out of concern that he might be viewed as being biased.

Good point Nick. I did that exact thing at a smaller scale when I taught primary and my daughter was in my class. She got the least amount of leniency when misbehaving just because I didn’t want her friends to think I was letting her off.

I don’t agree that we necessarily “trust these judges to b[e] impartial”. Plenty of them have failed to be impartial in the past and we fully expect that plenty of them will do so in the future. Which is why we have procedures for dealing with un-disinterested judges. They’re human beings and we have to watch them like anyone else in a position of power.

That being said, I can’t argue with Bruce’s conclusion, that if we disqualified this judge for being homosexual, then we would also have to disqualify a judge who was a devout, orthodox Catholic (or Southern Baptist or whatever).

Of course there was a time when being a practicing homosexual would have disqualified him for the bench, not because of potential conflicts of interest but because it was generally acknowledged to be a serious moral defect. Whether that being no longer the case, is a good thing, is another question.

Here’s another interesting wrinkle. Suppose we agreed that an openly gay judge was biased, and that he shouldn’t hear the case. Suppose it gets reassigned to a judge who is believed to be heterosexual. Suppose that allegedly-heterosexual judge turns out to be a big closet case? How do you weed out the supposed bias of a gay man hearing the case, when we all know there are many closeted gay men?

Nate: First, if anyone had pursued that topic I would have not participated. Second, I think it speaks volumes that to some people, even people who call themselves Christian, it’s taboo to even begin discussing whether practicing homosexuality is a serious moral defect.

I’ll say again what I said in the last thread: I think it is interesting how we have internalized the narrative of white heterosexual males being neutral. I know of some really good articles written about the subject that I read in law school, arguing that the notion of neutrality just serves to privilege the experience of the majority of decisionmakers (read: white males) over other perspectives. See Barbara J. Flagg, “Was Blind, but Now I See:” White Race Consciousnes and the Requirement of Discriminatory Intent, 91 Mich. Law Rev. 953 (1993).

I think that a good example of this was the reaction to Justice Sotomayor’s “wise Latina” speech (full text here. Here is an excerpt from that speech:

While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address…. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.
…Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable…. However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Agellius, the subject is not taboo and has been discussed ad nauseum on this blog and others in the Mormon blog community for the last seven years or so (when I started participating). I think the point is that an ethical discussion of homosexuality is specifically where Bruce did NOT want this discussion to go, as he said many, many times in both posts.

The issue is one of logic. Based on my knowledge of Bruce, he is using this subject to back up arguments for some future argument he will make on a future subject. He is like a chess player thinking 10 moves ahead. So, let’s cede him this point (which is pretty much incontrovertible) and see what we get in a future post.

I agree that it’s inflammatory and that’s why I would not have pursued it. Its generally extremely difficult to have anything like a rational discussion on that topic.

As for relevance to the original post, remember that the post’s title is “The Relevance of Judge Vaughn Walker’s Sexual Orientation”, which I take to mean, whether or not his sexual orientation is relevant.

My comment was intended to point out that possible bias is not the only way in which his “orientation” could be relevant.

However again, I did not intend to elaborate since the chances of rational discourse on such a topic would be quite remote.

His orientation would only be relevant then if you believe there is something inherently dishonest about homosexual judges (and homosexuals in general). Because of the direction you tried to take the discussion, I’m assuming you don’t believe homosexuals are born homosexual, so I’m not sure where you’re going with this.

If we accept Sotomayor’s point as valid, it seems obvious to me that the net result is that a gay judge alone (or a believing Christian alone) would be unsuitable in a situation like this. We could trust neither to have the experiences required to represent the other group being affected.

Instead, we would want both experiences of both affected groups to be represented in the decision. Therefore, we’d intentionally seek out a gay judge and a former minster judge and get them to hash out a verdict.

Unless we are starting with the assumption that gays (or believing Christians) are inherently dishonest, I do not see this as a problem.

Your argument is based on the assumption that we do believe gays or Christians to be biased judges, so I’m going to start with that assumption for the moment.

This could be handled just like a jury trial. We’d get a higher judge to ask ‘suitability questions’ of the judge in question. These questions would include ‘if you are a member of a group that has a strong stake in the outcome, in this case a member of the gay community or the conservative Christian community, then we expect you to recuse yourself.’

At this point, it does become a matter of honor, but backed by possible impeachment or worse if the person was found to have lied in court. Given that scenario, yes, we could still have someone be an in the closet homosexual or in the closet Christian and we might end up with a partial judge after all. But we probably wouldn’t.

Given this starting assumption, I see no difference then if I get called to jury duty and find out my son is the one on trial. If the judge asks the potential jury “is anyone here related to the defendant?” I’m going to admit it.

But if he asks me “please recuse yourself if you feel you can’t be impartial” then I have a lot more latitude to decide whether or not my being his father is a concern or not. Further, there is no threat of perjury (or whatever it would be called in this case) if later people find out I was on the jury and I’m his father.

I think this is a misreading of Justice Sotomayor’s point–her point is that diversity on the bench creates an environment where each judge is more likely to see the limits of his or her own viewpoint. She doesn’t say that we should not try to examine and overcome our biases, but rather that to think we can do so completely is folly, and so creating an atmosphere where judges are constantly encountering their biases and preconceptions in a spirit of humility is a good system.

#18 Bruce:
Actually, I’m not assuming that gays are inherently dishonest OR that a gay judge would be inherently biased in the case. I’m only discussing the subject of bias arguendo, and like the OP, showing how silly the bias accusation truly is.

One of the problems here, of course, is that the judge is only being accused of bias by those who favored the pro-Prop 8 side, and only because he found for the plaintiffs. If the judge would have found for the Prop 8 proponents, they would almost certainly would not be accusing him of being biased, which ultimately shows just how flimsy the bias accusation really is. “Bias,” in this case, is being used much like the “activist judge” slur—shorthand for “the judge’s legal conclusion didn’t match my emotional conclusion, and I’m pissed about it!”

When I first heard about Judge Walker’s alleged sexual orientation (which was long before he ruled on the Prop. 8 case), I went through essentially the same logic and came to the conclusion that if he was required to recuse himself from the case because of the potential for bias, then most likely a Mormon judge would be required to recuse himself on the same basis. Since I believe I could have decided the case fairly based on the law rather than my own personal preferences, I decided that requiring that I recuse myself due to the fact that I am Mormon would not be correct. Therefore, I gave Judge Walker the benefit of the doubt and hoped that because of the potential that he could be seen as biased, he would make an effort to be scrupulously fair. That would have been my approach had I been appointed as the judge in the case.

It seems Judge Walker did not make such an effort. But that does not negate the logic behind not requiring him to recuse himself, as it is possible a different homosexual judge would have acted more properly.

Nick, the fact that his opinion did not mention what should have been considered binding precedent, not even to distinguish it from the current case, is essentially proof that he was acting in bad faith. In Baker v. Nelson (http://en.wikipedia.org/wiki/Baker_v._Nelson) the U.S. Supreme Court previously dismissed a case that claimed prohibiting same-sex marriage violated the equal protection clause, and the dismissal was done in such a way that it had precedential value. A federal district court judge cannot overrule a Supreme Court precedent even if he thinks the previous case was wrongly decided. The best he can do is to distinguish the case (show why the new case is different enough that the precedent should not apply.) Judge Walker’s opinion did not even mention the precedent. If he were trying to be scrupulously fair, he should at least have said something like, “Proponents of Proposition 8 claim that Baker v. Nelson is controlling precedent, but [explanation as to why this case is different].”

So what you’re saying, Eric, is that because you disagreed with Judge Walker’s ruling, you believe he acted in bad faith. You are, of course, reciting the argument of the proponents of Prop 8, who would simply love to pretend that Romer v. Evans never existed and there have been no relevant developments since 1972.

> So what you’re saying, Eric, is that because you disagreed with Judge Walker’s ruling, you believe he
> acted in bad faith.

Umm, no. I’m not saying that. He could have written an opinion with the same final outcome that I would have disagreed with, but could respect as being a fair consideration of the case. He did not (for reasons including, but not limited to, his failure to address Baker.)

Nate W.,

I believe it was incumbent on him to fairly address the proponents’ most important arguments in his final opinion. If I were the judge and were issuing an opinion in favor of Prop. 8, I would certainly have distinguished Romer in my opinion, even if I had already ruled against summary judgment on that basis.

I repeat that the logic of saying Judge Walker should have recused himself because he may (or may not) be homosexual is faulty. However, this post has taken another turn that I think it worthwhile (although I am not the author, so if Bruce disagrees I will shut up), which is to look at the decision itself. Let me say up front that I am not a legal expert and frankly a lot of the legal arguments put forth go over my head. But in the interest of fair play, I’d like to link a few posts that deal with this decision and basically say that it was very poorly done.

The claims seem to be that Walker ignored precedent, used very shoddy standards during the trial and came to a deeply flawed decision. A lot of people are predicting it will be overturned by the Supreme Court.

I am not going to argue this issue endlessly — I am not qualified to do so. I tend to agree politically with the three writers I linked and thus I tend to think they may be correct. But I am open-minded enough to know I could be wrong. One thing that always happens when I delve into legal topics is that I discover some principle or precedent or line of reasoning that I didn’t know about or think about, so I’m interested to hear what some of our legal whizzes here have to say.

@ Nick 21
Nick, I’m honestly curious how you believe you’d react if Judge walker had just upheld Prop 8 and you knew him to be an active Mormon Bishop. Are you so sure you’d not be accusing him of bias?

@ Nick #23
“Eric, other than the fact that you happen to disagree with Judge Walker’s ruling…”

Nick, again, I’m honestly curious. What possible answer could Eric of given you that you couldn’t have reframed as ‘happening to disagree’ with the ruling?

Nate, I read Sotomayor’s point as that we are bias and we can’t get rid of that and our experiences (which bias us) are in fact often an asset because we understand where others within our group are coming from in a way an outsider may not.

I confess, I had not thought of any of this when writing my post. And I also confess, I can’t see anything I disagree with.

If you don’t agree with my conclusions, then I also can’t see how you apply it to the subject of this post. What exactly did you have in mind?

To be blunt, that is idiotic. Baker was not an issue at trial–he was finding facts. Since that decision did not have anything to do with the facts of the case, why should he have addressed it yet again? To make you happy? FRCP 52 dictated what needed to be in his memorandum decision. The D-I’s argument regarding Baker is in the record, it’s preserved for appeal, there was no need to address it again. There is nothing in Rule 52 or 56 that would require him to address it yet again.

But let’s say that he should have summarized the whole thing. How does this prove bad faith on his part as you accuse? That’s a pretty serious accusation you’re leveling against a federal official. Considering that the basis of your claim is that he didn’t address an issue in the document that you would have preferred, I think that anything less than a retraction and apology of your accusation would be insufficient.

Of course, since I know you are a person of good faith, you’ll do that right away…

Eric said: “Since I believe I could have decided the case fairly based on the law rather than my own personal preferences, I decided that requiring that I recuse myself due to the fact that I am Mormon would not be correct. Therefore, I gave Judge Walker the benefit of the doubt and hoped that because of the potential that he could be seen as biased…”

Eric,

I can’t disagree with the logic of anything you said. And I believe you are being fair here since you’re being consistent to both points of view. I like that and I think it’s very rare.

However, have you given some thought to the fact that biased and unfair people never know they are biased and unfair? Don’t they always honestly believe they can be unbiased and fair?

The only reason I bring it up is because of when these questions of bias based on identity come up–no one would suppose that, without more, a white male judge would be biased in favor of white men. Questions about bias and conflicts based on identity are almost always directed at minorities. I thought that Justice Sotomayor’s insight that none of us are neutral and that diversity helps each of us see our biases would help to frame the discussion in terms of what we can and cannot expect out of judges. That’s all.

Nate writes, “The only reason I bring it up is because of when these questions of bias based on identity come up…”

Based on your use of the word “identity”, you apparently assume that active homosexuality equates to the color of one’s skin, i.e. is a trait one is born with rather than a matter of conduct, and is irrelevant to one’s character. I for one don’t know that to be a closed and settled question.

#29: He could have written an opinion with the same final outcome that I would have disagreed with, but could respect as being a fair consideration of the case. He did not (for reasons including, but not limited to, his failure to address Baker.)

In other words, you didn’t like his decision, and on that basis, you conclude that he was biased. Thank you for making my point once again, Eric.

Nick, again, I’m honestly curious. What possible answer could Eric of given you that you couldn’t have reframed as ‘happening to disagree’ with the ruling?

Perhaps something actually addressing the numerous factual and legal findings in the 134 page opinion, rather than simply the soundbyte issued by the Prop 8 proponents, who even after all was said and done could only cry about Baker.

#31:Nick, I’m honestly curious how you believe you’d react if Judge walker had just upheld Prop 8 and you knew him to be an active Mormon Bishop. Are you so sure you’d not be accusing him of bias?

As a retired attorney, I actually read legal decisions, rather than simply media summaries thereof. If a judge who happened to be an LDS bishop wrote a decision which was as exhaustive as Judge Walker’s (keeping in mind that Judge Walker already addressed Baker, contrary to Eric’s accusation), I would respect it as a legitimate judicial decision, subject to appelate review like any other, even if I disagreed wholeheartedly with his reasoning.

Nate W: on this site, you can say whatever you want about public officials, and that includes conservatives (without using profanity of course). I think Sean Hannity and Glenn Beck are idiots. See, I just did it!!!

However, calling fellow bloggers idiots (they are not public officials) is simply not acceptable because 1)they are private citizens, not public officials and 2)it doesn’t create a nice atmosphere for discussion. There are many, many (mostly liberal) bloggers who don’t like those rules, but they are nonetheless the rules. If you don’t like the rules, you don’t have to come here to leave comments (although I hope you do because I think you leave a lot of very thoughtful, interesting comments).

Based on your use of the word “identity”, you apparently assume that active homosexuality equates to the color of one’s skin, i.e. is a trait one is born with rather than a matter of conduct, and is irrelevant to one’s character. I for one don’t know that to be a closed and settled question.

This may be an interesting argument for another time, but it’s not really central to my point–I am talking about questions that the judge will identify too much with one of the parties and therefore be unable to fairly judge the case. Not sure that the immutability of sexual identity has anything to do with that. If you can explain otherwise, I’ll be happy to address it, but I don’t want to lead this thread down a tangent.

Is there anything I could say, short of “I agree 100% with Judge Walker’s opinion, but I still think he’s biased,” that would convince you that my belief he was biased is not based solely on my disagreement with his opinion?

Nate W.,

I withdraw my statement that the failure to mention Baker in his opinion, standing alone, was essentially proof of Judge Walker’s bad faith. However, I believe that based on the totality Judge Walker’s actions in the case, there is reason to believe that he may have acted in bad faith, and that his failure to even mention Baker in an opinion which he knew was going to be widely disseminated by the media, taken in conjunction with his other actions, show that he may have been more concerned about good publicity for the cause of gay marriage than for maintaining an appearance of fairness in the case.

#42:Is there anything I could say, short of “I agree 100% with Judge Walker’s opinion, but I still think he’s biased,” that would convince you that my belief he was biased is not based solely on my disagreement with his opinion?

Yes, there is. Something along the lines of “I think Judge Walker was on target in addressing points A, B, and C, but I completely disagree with him treating Romer v. Evans as more relevant than Baker because __________” would do nicely. Honestly, I think the fact that you leap from Judge Walker treating Baker as irrelevant to “Judge Walker must be biased and not acting in good faith” is evidence of your own bias, more than any bias on his part. The fact that you disagree with an aspect of his legal reasoning is not, in itself, a reliable indicator that Judge Walker was biased and/or “not acting in good faith.”

Nick, when I first read Judge Walker’s opinion, my reaction was, “Wow, the proponents really fell down on the job of making their case.” In other words, I thought Judge Walker did a very good job of laying out the case for why a ban on gay marriage should be considered unconstitutional under the Fourteenth Amendment. It’s not reasoning I agree with, because my theory of Constitutional interpretation is different, but I thought he made the case very well. I was actually pretty annoyed by how solid the opinion seemed, and basically resigned myself to the fact that the judiciary was going to impose gay marriage on the whole country. Until I heard about Baker. That he could fail to mention in his opinion (even if it was mentioned in the record) the Supreme Court decision most directly on point seemed pretty outrageous to me, so that’s what started me reading about all the various other things Walker did that tend to show he was biased against the proponents (such as amending the rules to try to get the trial televised over their objection — something the Supreme Court overturned unanimously, refusing to take judicial notice of what other courts have said on the issue, etc.) So, while I probably erred in saying that the omission of any reference to Baker was “proof” of his bad faith, for me that was what flipped me from grudging respect for the opinion to believing Walker probably had an agenda, at which point I investigated further.

But we’re really getting off topic here. My point is that, going into the case, it was reasonable to believe that even a homosexual judge could be impartial. After the case, it is reasonable to believe that he was not. (Go ahead and list all the times Walker ruled in favor of the proponents and was overruled on appeal. Then list all the times he ruled against the proponents and they appealed and he was upheld. Now list all the times he ruled against the proponents, they appealed, and he was overruled. Now, ask yourself if there appears to be any pattern.)

#30:A lot of people are predicting it will be overturned by the Supreme Court.

At the same time, “a lot of people,” including several conservative religious leaders, are actually urging that California be “sacrificed” (their word), rather than risk an appeal to the SCOTUS which could go the plaintiffs’ way and have nationwide impact. Given the current makeup of the Court, we can’t be certain what will happen, and if you want to talk about judges or justices ruling according to their own sociopolitical bias, any first year law student can tell you the SCOTUS is frequently guilty.

I respect your not wanting to lead the discussion down a tangent. However if it is a tangent, it began when you made your remark about “bias and conflicts based on identity”, which assumes that it is immutable, or at least as immutable as skin color; and further, assumes that that assumption is shared by everyone. Your whole comment rests on that assumption since without it, the comment makes no sense.

In other words, you are perfectly willing to assume immutability and the equation of active homosexuality with race, but to discuss it is off-limits. All I’m doing is pointing out that the truth of the premise on which your argument is based has not been proven, and is not assumed by everyone. Least of all, I would think, by those who consider themselves devout Christians.

A very fair analogy would be to say that the homosexual-lovers become the majority, and they pass a law banning LDS temple marriage because it is “getting married” “the way that gays want to” is an invented consitutional right, and “LDS are restraining them from their basic human rights” by not allowing them to get married. If the decision went before a Mormon, who ruled against the gays, there’s no amount of spin that people could make to say it wasn’t biased.

If there’s monetary considerations AT ALL (and I think everyone’s intelligent enough to know that there are positive monetary considerations for gays, if they are allowed to marry), and the judge would be allowed to get married because of his ruling, there is an automatic conflict of interest.

Is nothing to do with whether or not gay people are more or less honest. It’s about transparency.

That’s not it at all. I won’t get into a conversation about whether homosexuality is immutable, but I think we can all agree that it is a shared characteristic between people that is used to mark an individual as a member of a group. That is what I mean when I am talking about identity issues–I am using it to try to distinguish it from other issues of bias, like an ownership interest or family connection.

The problem is that every reason you have come up with to say that he is biased or decided the case in bad faith has, upon examination, turned out to not be true. Judge Walker did address Baker, and since Baker’s application was not at issue in his giving his findings under FRCP 52, it would have been odd (and some would say inappropriate as it was not before him) for him to comment on it at that time other than to point to where it was earlier decided. The broadcasting issue was decided per curiam on a 5-4 vote (NB: Per curiam does not mean that a decision is unanimous–it only means that for one reason or another, there is no author listed. See Bush v. Gore and Planned Parenthood v. Casey for some examples of non-unanimous per curiam opinions.) If you do a search of commentators, many conservatives will admit how weak the majority opinion was on that issue. Regardless, it was definitely an issue where reasonable minds can differ.

I am sensitive to people saying that a judge is biased or that decisions were made in bad faith. As a lawyer, I am severely restricted in my right to say that, See ABA Model R. Prof’l Conduct 8.2, and since I saw in your Bio that you had graduated from law school, I was concerned. It looks like you are not a lawyer (in Utah at least) so I suppose that prohibition does not apply to you. However, accusations of bias or bad faith need to be backed up by something more than a hunch. You’ve made your accusation–either give credible evidence to support it or withdraw the accusation. It’s the honorable thing to do.

I understand that you are speaking of identification with a group. Nevertheless you compared it with being white and male, both of which are traits having nothing to do with conduct. So you are implying that a group identified by physical traits is of the same nature as a group identified by the conduct of its members. I don’t think physical traits can be compared with conduct in this context. (More on this in my next comment.)

I have been trying to think of a way of expressing this without turning it into a debate on the morality of active homosexuality. I think I have finally managed to do it.

I think the determination whether the judge was suitable to sit on this case depends on the assumptions you bring to the question. If you start with the assumption that active homosexuality is morally neutral, then such conduct would be no more relevant than being heterosexual, or for that matter white or male. But if it is morally wrong, then it’s relevant even where it has no bearing on the subject matter of a particular case.

Suppose a judge was an active bank robber: A case may have nothing to do with either banks or robbery, yet no one would consider a bank robber of suitable character to act as judge in that case. How much more unsuitable in a case that *does* have to do with bank robbery?

Thus again, it depends on the assumptions you bring to the question. Surprisingly, based on the way people are arguing, most of us here seem to assume that his active homosexuality is morally neutral, and therefore the only relevant question is whether there is direct evidence of bias.

But supposing active homosexuality to be morally bad, then is it not like having a fox decide the legality of hen-snatching?

We don’t have to discuss whether active homosexuality is immoral, but it should be acknowledged that a large number of Americans believe that it is. On that basis, it is by no means unreasonable of them to conclude that this judge was ill-suited to decide this case.

Wow, Agellius, you are trying really, really hard to bring in issues that are not relevant to this discussion.

The issue is whether a person who may be homosexual can decide a case fairly on Prop. 8. The only argument by analogy that works is to say, “could a heterosexual decide a case regarding gay marriage?” And the answer obviously is yes.

I think psychochemiker makes your case better than you do up in #50, but it still is not relevant because it is a hypothetical that is not realistic. He is describing a possible future world that we may never see and then asking us to describe how we would react to this possible future, hypothetical world.

Peoples’ sexual habits are (and should be) private and irrelevant to whether they can be good bankers, judges, teachers or salespeople. One of the problems (imho) with the “gay pride” movement is that it makes a private sexual decision a public issue, but I would argue that most gay people I know (and I know a lot of them) also have a problem with this and would prefer that such issues be kept private. A better question would be: let’s say Judge Walker is a flaming heterosexual and spends every weekend “swinging” and looking for female conquests? Is that relevant to his abilities as a judge if he performs his duties as he should during work hours? I would argue that most people would not find it relevant.

You are really getting on a dangerous slippery slope when you start saying that people should be judged on their private sexual behavior when that behavior has nothing to do with the job they are performing. Conservatives really do not want to go there, I think.

Pinpoint the evidence that you marshaled in support of your claim of bias/bad faith that does not have to do with either a) Baker or b) the decision to broadcast the trial. If I have overlooked something I will be happy to retract and apologize.

Your # 47 says to look at the decisions on appeal. However, a) there have been two to my knowledge, the stay issue and the broadcast issue. The broadcast issue we have already dealt with. The stay issue does not implicate bad faith or bias, as the reversing court did not give any justification for its decision and found no fault with Judge Walker’s opinion regarding the stay (it is not difficult to see why they granted the stay, but it had nothing to do with the usual legal test for a stay). b) reversal does not indicate bias or bad faith. Judges get reversed all the time–unless the reversal is based on a willful refusal to abide by binding precedent, i.e. grounds for Rule 11 sanctions for a lawyer, there is not any real grounds for saying that reversal indicates bias or bad faith.

I think you would be hard-pressed to find anyone (outside of Maggie Gallagher et al.) that would claim that Judge Walker’s rulings indicate bias or bad faith, even those who think that he is wrong on the law. As per Geoff’s request, I won’t request retractions or apologies, but I will say that a charge of bad faith or bias is fairly serious, and not one that should be thrown around lightly. I tell my clients that it’s very possible that a judge could decide a case wrongly. Most Americans will accept that. They will even accept that a judge’s interpretation of the facts may be colored by the judge’s experience and prejudices. But it is unacceptable that a judge is not trying his or her level best to reach an impartial decision based on a good-faith interpretation of the facts and law. Accusations of bad faith reduce public trust in the judiciary, whether the accusations have any foundation or not. It is part of my professional responsibility to push back against those sorts of accusations when I think they are without basis, and I take the charge seriously.

So, like I said, if there is other evidence of bad faith that you care to talk about, bring it up and we can talk about it. If you already have and I overlooked it, I will apologize. But let’s not throw around terms like bad faith lightly, OK?

Angellius, I think in order to make the assertion that someone’s private sexual behavior has a bearing on their moral fitness to hold a position of public trust, you would, at the very least, need to have evidence that the behavior either constitutes “a crime of moral turpitude” (a term of art having to do with abusing the private and social duties that one person owes to another and to society), or that it is causative of such crimes. The classic reason for excluding gay and lesbian people from positions of trust follows the second–the logic was that they could be blackmailed into betraying the public trust to avoid being outed. Public acceptance of gays and lesbians seem to make that logic obsolete these days. However, if there is something that I have not thought of that would describe why someone’s private sexual behavior would bear upon their ability to be trusted, let me know.

Perhaps something actually addressing the numerous factual and legal findings in the 134 page opinion, rather than simply the soundbyte issued by the Prop 8 proponents, who even after all was said and done could only cry about Baker.

Nick, how would directly disagreeing with the judge’s ruling in any way be different from “happen[ing] to disagree with Judge Walker’s ruling”?

Which do you want? Some piece of evidence that can’t in any way be reframed as disagreeing with the judge’s ruling (which I suspect is impossible) or an explanation of where he happened to disagree with the judge’s ruling? (Which he has already given at least two examples and Geoff gave several articles on the subject to boot.)

Or are you really demanding that he come up with some piece of evidence that you, in your own bias, can’t refute? I would assume that’s impossible.

If a judge who happened to be an LDS bishop wrote a decision which was as exhaustive as Judge Walker’s…, I would respect it as a legitimate judicial decision, subject to appelate review like any other, even if I disagreed wholeheartedly with his reasoning.

Nick, I am not sure what you just said here. I believe I can safely read it in three possible ways.

The first would be that you are saying that if a court gave a decision you disagree with, and it was properly upheld, you’d publicly admit that outlawing gay marriage is legal and acceptable by the law and you’d not feel there was any bias at all involved.

The second would be that you would ‘respect it as a legitimate judicial decision’ or in other words you’d think it was illegal. immoral, wrong, probably biased, but you’d admit it was handled through the proper legal system. (Sort of a given.)

The third would be that you would judge it for yourself and if the LDS Bishop could make an argument as convincing to you as the one Walker made, then and only then would you declare it to be unbiased.

If it’s the first, then good for you. But please understand that I will be publicly holding you to what you said if Walker’s decision is over turned.

If it’s the second, then you and Eric are doing exactly the same thing so it’s hypocritical of you to be attacking him.

If it’s the third, then I suspect that no matter what the LDS Bishop said, you’d merely have to find something that you personally feel is not as strong as Walker’s argument. Given your own biases, this would be a given that no argument could seem as strong to you as Walker’s. Therefore, you didn’t say anything here at all in my opinion.

In any case, this is three possible ways I can read what you said. Presumably you meant none of the above. So please clarify.

Bruce, your #62 seems quite intent on finding a way to negatively characterize my comment. If doing so makes you feel better, then by all means enjoy yourself, but don’t expect anyone else to buy into it. I said precisely what I meant. I judge a judicial ruling on the opinion as written, not on the demographic characteristics of the judge who wrote it. If a decision is fully explained and reasoned, then it is entitled to my respect as “legitimate,” i.e. made for legal reasons, rather than the sort of bias that Eric and Agellius seem to feel is inherent in any judge who rules differently than they would. Whether or not I agree with the outcome has virtually nothing to do with whether or not the opinion was well reasoned. For example, I didn’t like the fact that the Prop 8 trial couldn’t be broadcast, but the SCOTUS opinion on the matter was, in my opinion, unassailable. Proper civil procedure had not been followed, and so the new rule to allow broadcasting could not be put into effect.

That said, every decision (short of a state supreme court in a state matter, or the SCOTUS in a federal matter) is subject to appeal, i.e. no matter how well reasoned the opinion is, the losing side has a right to file an appeal with a higher court.

Of course, you’ve already stated that in your opinion, I have biases which make me utterly incapable of accepting a ruling I disagree with as legitimate and lawful, so this explanation doesn’t really mean anything to you. It’s probably a shame that I wasted the time to answer your question at all.

You took a comment clearly stated as “If it’s the third…” and then decided to claim I had made a comment specifically about you in general.

If you had actually meant option 3, then, yes, all human beings — including you — are too bias for such a statement to mean anything. When someone – anyone – says that they’ll change their mind if only someone can make an argument as convincing as so-and-so’s, who they happen to already agree with… well, let’s just say such statements are known to be meaningless because we know people judge the strength of an argument based primarily on their own biases.

With your further explanation it would seem that you were not suggesting option 3. I’m glad.

However, I confess I do not yet see the difference between you and Eric other than you don’t want him to express his opinion of someone acting biased or in bad faith but you feel you should be able to express yours. After all, you just barely accused me of acting in bad faith.

Plus you have a history of it elsewhere (as does everyone I know, of course). Expressing bad faith motives to Thomas S. Monson on why he is backing Prop 8 comes to mind. To say nothing of the fact that you sometimes do it far more forcefully and less respectfully then Eric just did.

Is the issue that you feel Judges are a different category and should be treated differently than other people? Because I can’t remember you ever being disrespectful of, or claiming bad motives for, of any judge so far.

You write, ‘Wow, Agellius, you are trying really, really hard to bring in issues that are not relevant to this discussion. The issue is whether a person who may be homosexual can decide a case fairly on Prop. 8.’

I admit that based on the text of Bruce’s post, my latest comment may not be relevant. But based on the title of his post — “The Relevance of Judge Vaughn Walker’s Sexual Orientation” — I think it is, because I’m discussing whether or not his “orientation” is relevant to his fitness to rule on the case.

You write, ‘I think psychochemiker makes your case better than you do up in #50, but it still is not relevant because it is a hypothetical that is not realistic.’

I disagree that phschochemiker makes my case better than I do, since he is not making the same case that I am making.

You write, ‘Peoples’ sexual habits are (and should be) private and irrelevant to whether they can be good bankers, judges, teachers or salespeople.’

I think this begs the question.

You write, ‘A better question would be: let’s say Judge Walker is a flaming heterosexual and spends every weekend “swinging” and looking for female conquests? Is that relevant to his abilities as a judge if he performs his duties as he should during work hours? I would argue that most people would not find it relevant.’

If Judge Walker were a notorious heterosexual lecher and philanderer, then I think devout Christians would be justified in questioning whether he were the best person to judge a case concerning, say, the constitutionality of laws against fornication.

First, there is no “n” in “Agellius”. It’s nothing to do with angels. : )

Second, it seems we are discussing two different things: You argue the question whether an actively homosexual judge ought to be a judge at all. You give the legal standard, I guess, for deciding whether someone is fit for public office. I was not aware of the meaning you gave for “moral turpitude”, which is not suprising since I’m not an attorney. Although I will say that I find it defined a little differently, as “conduct that is considered contrary to community standards of justice, honesty, or good morals”. However I’m willing to concede that point for purposes of this argument.

What I’m still arguing is not whether there is a legal basis for disqualifying the judge from being a judge, but rather, whether there is a rational basis for believing that he was not a suitable choice to decide this issue.

If the issue were a morally neutral one, say one concerning free speech rights, then the moral character of the judge might be irrelevant. But what we have here is a situation where the very question at issue is whether to give societal sanction, in the form of government approval and recognition — and thus moral approval — to a particular practice, and whether to equate it in government’s (and therefore society’s) eyes with other activity which is universally acknowledged to be morally neutral (i.e. heterosexual activity).

Such sanction has long been denied on the ground that most people do not give moral sanction to the activity in question. We are now to decide whether that will change. The question was put to a vote, and the people said, in effect, “no, we still don’t sanction it”.

Now the question whether to overturn the people’s decision is placed in the hands of a person who actively engages(1) in the activity in question. It’s not merely whether he approves or disapproves of it. It’s the fact that he actually *does* it and intends to continue doing it(2).

*If* one believes that active homosexuality is immoral, how, *logically*, is this unlike having an active drug user decide whether society shall give official sanction to drug use? Or an active pedophile decide whether society shall give offical sanction to pedophilic unions(3)? Or whatever, just fill in the blanks.

It is not irrational in people who believe active homosexuality to be immoral, to feel as though this is analogous to assigning the fox to guard the henhouse.

(1) By an “active homosexual”, I mean one who has engaged in homosexual activity in the past and intends to continue engaging in it. The same would apply to an active drug user or an active pedophile, or whatever other person might be engaging in activity which is at least morally controversial, if not universally acknowledged to be immoral outright. This is to distinguish the active engager in some activity, from someone who has done it in the past but has ceased the practice and has no intention of ever resuming it; or who has been tempted to do it but has never indulged the temptation and doesn’t intend to.

(3) Note that I am not equating homosexuality with pedophilia, any more than with drug use (which I consider morally neutral), but merely giving examples of practices that are at least morally controversial if not universally acknowledged to be immoral outright. Nor did I intend to be inflammatory, I just had a hard time thinking of parallel examples of practices which people have an interest in having society approve, but which don’t involve financial benefits.

Your argument makes an assumption that I don’t think is tenable: “what we have here is a situation where the very question at issue is whether to give societal sanction, in the form of government approval and recognition — and thus moral approval — to a particular practice…” (emphasis mine).

Whether same-sex marriage is legal has nothing to do with morality, unless you are using a definition of morality that is very different from most people’s definition. The Supreme Court has expressly stated: “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992). Also “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice….” Lawrence v. Texas, 539 U.S. 558, 577 (2003). Morality should never come into the decision, except as that intertwines with the question of imposing on other people’s rights.

Your analogy is inapposite for another reason–the Supreme Court has already ruled that laws against private consensual sexual relationships between people of the same sex are protected by the Constitution. This is not the question in this case. The questions are whether the fundamental right of “marrying a person of one’s choosing” includes the right to marry a person of the same sex, whether gays and lesbians meet the definition of a protected class under Footnote Four, and whether proposition 8 deals with a sufficiently legitimate governmental interest and is sufficiently tailored to meet that interest under the appropriate level of scrutiny. None of these questions are related to the morality of homosexual activity.

#65:However, I confess I do not yet see the difference between you and Eric other than you don’t want him to express his opinion of someone acting biased or in bad faith but you feel you should be able to express yours.

Ahhh, the new game of the anti-gay religious activists. Dare to disagree with them, let alone criticize them, and they immediately scream out that you’re trying to SILENCE them, and TAKE AWAY THEIR FREE SPEECH, blah, blah, blah. If you were an honest man, Bruce, you’d admit that never once have I suggested that Eric shouldn’t be allowed to express his opinion, no matter how disconnected it may be from factual evidence.

#66Now the question whether to overturn the people’s decision is placed in the hands of a person who actively engages(1) in the activity in question. It’s not merely whether he approves or disapproves of it. It’s the fact that he actually *does* it and intends to continue doing it(2).

I’d venture to say that unless you’ve personally been intimate with Judge Walker, you have absolutely no idea what sexual activities he may or may not have engaged in, Agellius. Is there something you’re trying to confess to us now?

If you were an honest man, Bruce, you’d admit that never once have I suggested that Eric shouldn’t be allowed to express his opinion…

That’s it? That’s all I have to do to convince you that I’m an honest man?

Okay, here goes:

Nick, I see no where whatsoever where you tried to remove Eric’s freedom of speech nor where you tried to not allow him to express his opinion.

Wow! That was suprisingly easy.

Now that we’ve established my honesty credentials, let’s establish yours.

Nick, please admit that I never made such a ridiculous claim anywhere at all to begin with.

However, I do see where I claimed that the only difference between you and Eric was that I saw that you did not want him to express his opinion about Judge Walker on the moral/ethical grounds that you felt it was disrespectful to a judge (or to his decision) to claim it was made in part (or primarily) out of internal biases. (i.e. “If a decision is fully explained and reasoned, then it is entitled to my respect as “legitimate,” i.e. made for legal reasons, rather than the sort of bias that Eric and Agellius seem to feel is inherent in any judge who rules differently than they would”)

Eric has never tried to require such an ethical standard of you in reverse.

Since that’s a factual claim supported by direct evidence everyone can see, I am going to stick with this claim. I’m going to even reassert it.

Oh, and also, I’d still like to see you make an honest attempt to answer my question in the last post: what’s the difference between yours and Eric’s position?

You claim it’s that Eric is clearly deciding that the Judge is bias based on nothing but that he didn’t like the decision. But I don’t see Eric claiming that. In fact, I saw Eric give a couple of reasons why he felt the way he did. You did not agree with or like his reasons, but that’s just your opinion pitted against his.

That’s the irony, Nick, you are doing to Eric the very thing you claim Eric is doing the to Judge Walker, i.e. looking at his arguments and deciding if the arguments actually support the conclusion or if it’s actually some internal bias that is the real determining factor.

So I honestly see no difference between what either of you are doing: looking at the facts and using your internal values to make an honest best conclusion about someone else. (Eric about the Judge, you about both the Judge and Eric.)

However, I do see where I claimed that the only difference between you and Eric was that I saw that you did not want him to express his opinion about Judge Walker on the moral/ethical grounds that you felt it was disrespectful to a judge (or to his decision) to claim it was made in part (or primarily) out of internal biases.

Now you’re just getting yourself confused, Bruce. That wasn’t me. That was Nate.

In fact, I saw Eric give a couple of reasons why he felt the way he did.

If you were paying any attention at all, Bruce, you’d notice that I left him alone after he gave us his mental process in the matter. I may not agree with him, but at least he appears to have given the matter some thought, rather than the knee-jerk reaction of the right wing pundit press.

So I honestly see no difference between what either of you are doing: looking at the facts and using your internal values to make an honest best conclusion about someone else.

While we’re all being so honest, Bruce, I honestly think you’re intentionally twisting and misrepresenting my comments, so you can pick a fight and then pat yourself on the back later over how you “defended truth and righteousness.” Thanks for the reminder of why I disengaged from the bloggernacle for several mnoths.

We’re talking past each other, in my opinion. You are still arguing
the question as if it’s a matter of law. Which I respect, you
obviously know the law well and express yourself clearly. But that’s
not the tack I was taking. Which is fine, I’m content to agree to
disagree at this point.

Bruce’s final analysis of Nick before Nick turned bitter and uncivil this time:

So I honestly see no difference between what either of you are doing: looking at the facts and using your internal values to make an honest best conclusion about someone else

Oh my, that is soooo rude of me!!!! I am really sticking it to you aren’t I? How dare I call you a honest person using your internal values to draw your best conclusion!!!

Now you’re just getting yourself confused, Bruce. That wasn’t me. That was Nate. … If you were paying any attention at all, Bruce, you’d notice that I left him alone after he gave us his mental process in the matter.

Actually, I directly quoted you in my #70. And the quote was from your #64, so it was quite late into the conversation. So I call bull on both of these quotes from you.

While we’re all being so honest, Bruce, I honestly think you’re intentionally twisting and misrepresenting my comments, so you can pick a fight and then pat yourself on the back later over how you “defended truth and righteousness.”

Well, now that you have decided to be blunt, I believe I’m entitled to the same level of bluntness.

Nick, I honestly think quotes like that above are in your heart before the dialog even begins and that you look for a place to insert them into the conversation as a final smack against people that disagree with you. And I believe that if you don’t find a natural way to do so, you force fit it into the conversation like you did with this one.

Eric, I checked out spam filter, and it’s not there. I’m really sorry — we are trying to change servers because we have had nothing but problems with our current server. If it makes you feel better, it happens to me all the time. I have taken to copying and pasting long comments elsewhere because they disappear so much.

Doh! And it was such a brilliant post, too, filled with absolutely convincing arguments that would have persuaded everyone to my position. Alas, it was such a work of art that any attempt on my part to recreate it will be but a pale shadow of the original, but I’ll try to post a meager imitation sometime in the next couple of days.

As far as I can tell, there were no instances of Judge Walker ruling in favor of the proponents and being overruled on appeal. However, there are three instances in which he ruled against the proponents and the proponents appealed, and all three times he was ultimately overruled by a higher court:

1. The issue of 1st Amendment protection for internal campaign documents. Walker’s ruling against proponents was overruled by a unanimous panel of the 9th Circuit. (I knew there was a unanimous ruling against Walker somewhere in this case; I merely was mistaken about which part.)

2. The issue of televising the trial. I’m counting both the stay and the final opinion of the Supreme Court as one issue, because both applied to the same ruling by Walker.

3. The issue of staying the final opinion during appeal. Overruled by a panel of the 9th Circuit.

Let’s imagine that a BYU alumnus were chosen to referee a BYU-Utah football game. A lot of people would naturally be suspicious about whether he could fairly referee the game, but it is possible that he could.

During the game, the referee makes three calls that are reviewed by the instant replay officials. All three of those calls were in favor of BYU. All three of them were reversed.

Of course, it’s possible that is the result of purely random chance. After all, if I flip an unbiased coin (BYU heads, Utah tails) the chances of the coin coming up all heads in three flips is 1 in 8. But that also means, with an unbiased coin, the chances of getting at least one tails is 7 in 8. Given that the referee’s overturned rulings all went in the direction of his suspected bias, it would be reasonable to conclude that he was letting his bias influence his rulings.

No analogy is perfect, but based on the fact that all Walker’s appealed rulings (that have been decided so far) were against the proponents, and all were ultimately overturned, it certainly seems reasonable to conclude that the chances that Judge Walker allowed his personal bias to influence his rulings are pretty good.

I believe that the divorce rate has been going down for a while now. The rate of divorce for first marriages is much lower than that. I wish that we’d stop quoting that misleading statistic as I think it lends a sense of fatalism to marriage and might in and of itself contribute to the divorce rate.

If people thought that nobody got divorced would they be less likely to seek a divorce than if they thought that half of everybody gets a divorce?

I should note (for those that didn’t think my previous comment was a joke) that I think homosexuals have no better or worse judgment than anybody else.

I will just point you to my previous comment to show that being reversed is not, in and of itself, sufficient to show bias. Your example of a referee is inapposite, because a referee is 1) making a call based on facts that he/she personally witnessed, 2) is not dealing, in most cases, with how to properly interpret a rule, and 3) has no memorandum of decision that we can analyze. I think the third distinction is the most important. Since we have Judge Walker’s reason for his decision, we can examine it to determine whether there is a sign of pretext or bias.

In my previous comments, I have looked at the analysis of the televising issue (nb: the decision to hear the case was 8-1, with Breyer dissenting, the decision to issue the stay was 5-4) and the stay issue (the motions panel reversed without opinion). I do not see one issue in those matters where Judge Vaughn’s decisions were outside the bounds of reasonableness, and you have not pointed out anything to show that his decisions were unreasonable.

I am not trying to say that Judge Walker was always right in his decisions. District judges often get the law wrong; their vantage point from “down in the weeds” does not make for a great vantage point for interpreting the law. However, it does not follow that a wrong judge is a biased judge. If the judge is biased, we should b e able to tell from his memoranda. Everything that I have read indicates a very careful, methodical approach to decision making. Could this just be a screen for bias? Maybe, but it isn’t a conclusion we should make without more evidence than the facts that a) he is likely gay, b) he has been overturned on three of his rulings for the plaintiffs, and c) he did not repeat his discussion of Baker in his memorandum decision.